Radio Free Brattleboro Decision Analysis

The 12-page ruling that came down earlier this spring, forbidding the station from taking to the air ever again, was only written after U.S. District Judge J. Garvan Murtha extended rfb and the FCC a chance to negotiate some sort of amicable settlement. rfb proposed powering down in exchange for the FCC giving Vermont Earthworks expedited consideration of its LPFM application. The FCC refused (though the organization was awarded the right to build WVEW-LP anyway) and went to another federal court for a warrant to raid the station.
With a settlement thus impossible, Murtha had to make a ruling. So he did, and it pretty much tracked with my initial suspicions. He noted that rfb was statutorily barred from receiving an LPFM license; he employed the “jurisdictional wiggle”* to sidestep and otherwise ignore rfb’s constitutional challenges to the FCC licensing regime. He also denied rfb’s call for sanctions against the FCC for double-dipping the legal system in order to take the station off the air. The station had been fairly warned that a raid might be in the cards, and there’s no rule that limits the number of enforcement tools the FCC can employ at any given time. In these respects the decision falls on the unremarkable pile.
What is most interesting is what’s left unsaid. Murtha remarks in one place that the station had asserted, in prior correspondence with the FCC, a “license of support from a substantial majority of the people of Brattleboro, referring to a town referendum vote,” (internal quotation marks omitted), but does not address this plank of its defense at all in his discussion on matters of law.
This is interesting because one of rfb’s main rationales for defying the FCC was that it had mustered an alternate authority to broadcast from its local community, to make up for the shortcomings of the federal licensing system. The whole radical notion was a even subject of some discussion at the case’s main hearing.
Since Judge Murtha declined to make precedent on rfb’s most unique defense, other stations remain free to test their luck with it. That had to be a conscious omission, and was probably the best thing Murtha could do to demonstrate support for rfb under the circumstances.* – A number of decisions have been made in the area of microradio case law which hold that constitutional challenges and other direct attacks on FCC statutory authority can only be heard in federal Courts of Appeal; some have gone so far as to reserve such disputes exclusively to the D.C. Circuit. It’s by no means a unanimous judicial sentiment, but it’s convenient for jurists who would rather duck the fundamental issues.